Dealing with parking rights
Dealing with parking rights

The following Property guidance note provides comprehensive and up to date legal information covering:

  • Dealing with parking rights
  • Legal status of parking rights
  • The ‘degree’ test
  • The test of ‘possession and control’
  • Case law since Batchelor and Moncrieff
  • Possible reform

The need for parking is commonplace and consequently land for parking can attract significant value either by way of:

  1. sale

  2. lease or licence, and

  3. (most commonly) the grant of rights to park

Legal status of parking rights

Historically, the legal status of rights to park has been uncertain.

For any right over land to amount to an easement it must comprise certain essential characteristics. One of these characteristics is that the right in question must be capable of forming the subject matter of a grant of easement. This requirement is difficult to reconcile with the ‘ouster principle’. The principle proposes that a right cannot be an easement if it is so extensive as to exclude the servient owner from using his land by effectively ‘ousting’ him from his property altogether.

The relevant case-law has considered where the dividing line lies between a right which constitutes an easement and a right which excludes the servient owner from his land to such an extent that it is incapable of being the subject matter of a grant of easement.

The ‘degree’ test

The question is one of degree:

  1. a right to use a coal shed was declared an easement, but

  2. a prescriptive right to use the whole of a strip of land for the storage of vehicles was not

The ‘degree’ test states